TPP chương QQ về sở hữu trí tuệ (TPP treaty intellectual property rights chapter tiếng anh)

TPP Treaty: Intellectual Property Rights Chapter, Consolidated Text (October 5, 2015) WikiLeaks release: October 9, 2015 Keywords: TPP, TPPA, United States, Canada, Australia, New Zealand, Malaysia, Singapore, Japan, Mexico, Peru, Vietnam, Brunei, Chile, Trade, Treaty, InvestorState Dispute Settlement, ISDS, ICSID, Geographical Indications, copyright, Internet, Pharmaceuticals, Trademark, Patent Restraint: This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED Title: Trans-Pacific Partnership Agreement (TPP): Intellectual Property [Rights] Chapter, Consolidated Text Date: October 5, 2015 Organisation: Trans-Pacific Partnership Author: Trans-Pacific Partnership IP Chapter country negotiators Link: https://wikileaks.org/tpp-ip3 Pages: 60 Description This is the highly sort after secret 'final' agreed version of the TPP (Trans-Pacific Partnership) Chapter on Intellectual Property Rights There is still a finishing 'legal scrub' of the document meant to occur, but there are to be no more negotiations between the Parties The TPP Parties are the United States, Mexico, Canada, Australia, Malaysia, Chile, Singapore, Peru, Vietnam, New Zealand and Brunei Darussalam The treaty has been negotiated in secret by delegations from each of these 12 countries, who together account for 40% of global GDP The Chapter covers the agreed obligations and enforcement mechanisms for copyright, trademark and patent law for the Parties to the agreement The document is dated October 5, the same day it was announced in Atlanta, Georgia USA that the 12 nations had managed to reach an accord after five and half years of negotiations This Document Contains TPP CONFIDENTIAL Information TPP Negotiations MODIFIED HANDLING AUTHORIZED IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice COVER PAGE INTELLECTUAL PROPERTY [RIGHTS] CHAPTER Consolidated Text CLEAN 05 Oct 2015 CHAPTER QQ {INTELLECTUAL PROPERTY RIGHTS / INTELLECTUAL PROPERTY} {Section A: General Provisions} Article QQ.A.1: {Definitions} For the purposes of this Chapter intellectual property refers to all categories of intellectual property that are the subject of Sections through of Part II of the TRIPS Agreement Article QQ.A.X: {Objectives} The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations Article QQ.A.Y: {Principles} Parties may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Chapter Appropriate measures, provided that they are consistent with the provisions of this Chapter, may be needed to prevent the abuse of intellectual property rights by rights holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology QQ.A.Z: {Understandings in respect of this Chapter} Having regard to the underlying public policy objectives of national systems, the Parties recognize the need to: • promote innovation and creativity; • facilitate the diffusion of information, knowledge, technology, culture and the arts; and • foster competition and open and efficient markets; through their intellectual property systems, while respecting the principles of transparency and due process, and taking into account the interests of relevant stakeholders, including rights holders, service providers, users and the public Article QQ.A.5: {General Provisions / Nature and Scope of Obligations} Each Party shall give effect to the provisions of this Chapter A Party may, but shall not be obliged to, provide more extensive protection for, and enforcement of, intellectual property rights under its law than is required by this Chapter, provided that such protection and enforcement does not contravene the provisions of this Chapter Each Party shall be free to determine the appropriate method of implementing the provisions of this Chapter within its own legal system and practice Negotiator‟s Note: Section and Article titles and headings appear in this text on a without prejudice basis Parties have agreed to defer consideration of the need for, and drafting of, Section and Article titles and headings Such titles or headings that appear in braces (i.e., “{ }”) are included for general reference and information purposes only Article QQ.A.7: {Understandings Regarding Certain Public Health Measures} The Parties affirm their commitment to the Declaration on the TRIPS Agreement and Public Health (WT/MIN(01)/DEC/2) In particular, the Parties have reached the following understandings regarding this Chapter: (a) The obligations of this Chapter not and should not prevent a Party from taking measures to protect public health Accordingly, while reiterating their commitment to this Chapter, the Parties affirm that this Chapter can and should be interpreted and implemented in a manner supportive of each Party‟s right to protect public health and, in particular, to promote access to medicines for all Each Member has the right to determine what constitutes a national emergency or other circumstances of extreme urgency, it being understood that public health crises, including those relating to HIV/AIDS, tuberculosis, malaria and other epidemics, can represent a national emergency or other circumstances of extreme urgency (b) In recognition of the commitment to access to medicines that are supplied in accordance with the Decision of the General Council of 30 August 2003 on the Implementation of Paragraph Six of the Doha Declaration on the TRIPS Agreement and Public Health (WT/L/540) and the WTO General Council Chairman‟s statement accompanying the Decision (JOB(03)/177, WT/GC/M/82), as well as the Decision on the Amendment of the TRIPS Agreement, adopted by the General Council, December 2005 and the WTO General Council Chairperson‟s statement accompanying the Decision (WT/GC/M/100) (collectively, the “TRIPS/health solution”), this Chapter does not and should not prevent the effective utilization of the TRIPS/health solution (c) With respect to the aforementioned matters, if any waiver of any provision of the TRIPS Agreement, or any amendment of the TRIPS Agreement, enters into force with respect to the Parties, and a Party‟s application of a measure in conformity with that waiver or amendment is contrary to the obligations of this Chapter, the Parties shall immediately consult in order to adapt this Chapter as appropriate in the light of the waiver or amendment Each Party shall notify the WTO of its acceptance of the Protocol amending the TRIPS Agreement done at Geneva on December 6, 2005 Article QQ.A.8: {International Agreements} Each Party affirms that it has ratified or acceded to the following agreements: (a) Patent Cooperation Treaty (1979); (b) Paris Convention for the Protection of Industrial Property (1967); and (c) Berne Convention for the Protection of Literary and Artistic Works (1971) Each Party shall ratify or accede to each of the following agreements, where it is not already a Party to such agreement, by the date of entry into force of this Agreement for the Party concerned: (a) Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (1989); (b) Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1977), as amended in 1980; (c) International Convention for the Protection of New Varieties of Plants (1991) (UPOV Convention); (d) Singapore Treaty on the Law of Trademarks (2006) ; (e) WIPO Copyright Treaty (1996); and (f) WIPO Performances and Phonograms Treaty (1996) Article QQ.A.9: {National Treatment} In respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals of the other Party treatment no less favorable than it accords to its own nationals with regard to the protection of such intellectual property rights With respect to secondary uses of phonograms by means of analog communications and free over-the-air broadcasting and other non-interactive communications to the public, however, a Party may limit the rights of the performers and producers of the other Party to the rights its persons are accorded within the jurisdiction of the other Party A Party may derogate from paragraph in relation to its judicial and administrative procedures, including requiring a national of the other Party to designate an address for service of process in its territory, or to appoint an agent in its territory, provided that such derogation is: (a) necessary to secure compliance with laws and regulations that are not inconsistent with this Chapter; and (b) not applied in a manner that would constitute a disguised restriction on trade Paragraph does not apply to procedures provided in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights Article QQ.A.10: {Transparency} Further to Article ZZ.2 {Publication} and QQ.H.3.1 {Enforcement Practices With Respect to Intellectual Property Rights}, each Party shall endeavor to make available on the Internet its laws, A Party may satisfy the obligation in Article QQ.A.8.2(a) and (d) by ratifying or acceding to either the Protocol relating to the Madrid Agreement concerning the International Registration of Marks (1989) or the Singapore Treaty on the Law of Trademarks (2006) For greater certainty, nothing in this Agreement limits Parties from taking an otherwise permissible derogation from national treatment with respect to copyrights and related rights that are not covered under Section G (Copyright and Related Rights) of this Chapter For purposes of Articles (QQ.A.9.1-2 (National Treatment and Judicial/Admin Procedures), QQ.D.2.a (GIs/Nationals), and QQ.G.14.1 (Performers/Phonograms/Related Rights)), a “national of a Party” shall mean, in respect of the relevant right, a person of that Party that would meet the criteria for eligibility for protection provided for in the agreements listed in (Article QQ.A.8 (International Agreements)) and the TRIPS Agreement Negotiator‟s note: Parties to remember to insert correct cross references to other treaties including WPPT (Article 3) depending on whether chapter includes an obligation to accede to a list of treaties For purposes of this paragraph (Article QQ.A.9.1), “protection” shall include matters affecting the availability, acquisition, scope, maintenance, and enforcement of intellectual property rights as well as matters affecting the use of intellectual property rights specifically covered by this Chapter Further, for purposes of paragraph 1, “protection” also includes the prohibition on circumvention of effective technological measures set out in Article QQ.G.10 and the provisions concerning rights management information set out in Article QQ.G.13 {For greater certainty}, “matters affecting the use of intellectual property rights covered by this Chapter” in respect of works, performances and phonograms, include any form of payment, such as licensing fees, royalties, equitable remuneration, or levies, in respect of uses that fall under the copyright and related rights in this Chapter regulations, procedures and administrative rulings of general application concerning the protection and enforcement of intellectual property rights Each Party shall, subject to its national law, endeavor to make available on the Internet information that it makes public concerning applications for trademarks, geographical indications, 6,7 designs, patents and plant variety rights Each Party shall, subject to its national law, make available on the Internet information that it makes public concerning registered or granted trademarks, geographical indications, designs, patents and plant variety rights, sufficient to enable the public to become acquainted with the registration or granted rights Article QQ.A.10bis: {Application of Agreement to Existing Subject Matter and Prior Acts} Except as it otherwise provides, including in Article QQ.G.8 (Berne 18/TRIPS 14.6), this Chapter gives rise to obligations in respect of all subject matter existing at the date of entry into force of this Agreement that is protected on that date in the territory of the Party where protection is claimed, or that meets or comes subsequently to meet the criteria for protection under this Chapter Except as provided in Article QQ.G.8 (Berne 18/TRIPS 14.6), a Party shall not be required to restore protection to subject matter that on the date of entry into force of this Agreement has fallen into the public domain in its territory This Chapter does not give rise to obligations in respect of acts that occurred before the date of entry into force of this Agreement Article QQ.A.11: {Exhaustion of IP Rights} Nothing in this Agreement prevents a Party from determining whether and under what conditions the exhaustion of intellectual property rights applies under its legal system Section B: Cooperation Article QQ.B.1: {Contact Points for Cooperation} Further to TT.3 {Contact Points for Cooperation and Capacity Building}, each Party may designate one or more contact points for the purpose of cooperation under this section Article QQ.B.2: {Cooperation Activities and Initiatives} The Parties shall endeavor to cooperate on the subject matter covered by this Chapter, such as through appropriate coordination, training and exchange of information between the intellectual property offices of the Parties, or other institutions as determined by each Party Cooperation may cover such areas as: (a) developments in domestic and international intellectual property policy; For greater certainty, paragraphs and are without prejudice to a Party‟s obligations under QQ.C.7 {Electronic Trademarks System} For greater certainty, it is understood that paragraph does not require Parties to make available the entire dossier for the relevant application on the Internet For greater certainty, it is understood that paragraph does not require Parties to make available the entire dossier for the relevant registered or granted right on the Internet For greater certainty, this Article is without prejudice to any provisions addressing the exhaustion of intellectual property rights in international agreements to which a Party is a party (b) intellectual property administration and registration systems; (c) education and awareness relating to intellectual property; (d) intellectual property issues relevant to: (i) small and medium-sized enterprises; (ii) science, technology & innovation activities; and (iii) the generation, transfer and dissemination of technology (e) policies involving the use of intellectual property for research, innovation and economic growth; (f) implementation of multilateral intellectual property agreements, such as those concluded or administered under the auspices of WIPO; and (g) technical assistance for developing countries Article QQ.B.3: {Patent Cooperation/Work Sharing} The Parties recognize the importance of improving quality and efficiency in their patent registration systems and simplifying and streamlining their patent office procedures and processes for the benefit of all users of the system and the public as a whole Further to paragraph 1, the Parties shall endeavor to cooperate among their respective patent offices to facilitate the sharing and use of search and examination work of other Parties This may include: 10 (a) making search and examination results available to the patent offices of other Parties ; and (b) exchanges of information on quality assurance systems and quality standards relating to patent examination In order to reduce the complexity and cost of obtaining the grant of a patent, the Parties shall endeavor to cooperate to reduce differences in the procedures and processes of their respective patent offices Parties recognize the importance of giving due consideration to ratifying or acceding to the Patent Law Treaty; or in the alternative adopting or maintaining procedural standards consistent with the objective of the Patent Law Treaty Article QQ.B.x: {Public Domain} The Parties recognize the importance of a rich and accessible public domain The Parties also acknowledge the importance of informational materials, such as publicly accessible databases of registered intellectual property rights that assist in the identification of subject matter that has fallen into the public domain Article QQ.B.4: {Cooperation on Request} Cooperation activities and initiatives undertaken under this Chapter shall be subject to the availability of resources, and on request and on terms and conditions mutually agreed upon between the Parties involved 10 Parties recognize the importance of multilateral efforts to promote the sharing and use of search and examination results, with a view to improving the quality of search and examination processes and to reducing the costs for both applicants and patent offices Article QQ.B.xx: {Cooperation in the Areas of Traditional Knowledge} 11 XX.1 The Parties recognize the relevance of intellectual property systems and traditional knowledge associated with genetic resources to each other, when that traditional knowledge is related to those intellectual property systems XX.2 The Parties shall endeavor to cooperate through their respective agencies responsible for intellectual property or other relevant institutions to enhance the understanding of issues connected with traditional knowledge associated with genetic resources, and genetic resources XX.3 The Parties shall endeavor to pursue quality patent examination This may include: (a) in determining prior art, relevant publicly available documented information related to traditional knowledge associated with genetic resources may be taken into account; (b) an opportunity for third parties to cite, in writing, to the competent examining authority prior art disclosures that may have a bearing on patentability, including prior art disclosures related to traditional knowledge associated with genetic resources; (c) where applicable and appropriate, the use of databases or digital libraries containing traditional knowledge associated with genetic resources; and (d) cooperation in the training of patent examiners in the examination of patent applications related to traditional knowledge associated with genetic resources {Section C: Trademarks} Article QQ.C.1: {Types of Signs Registrable as Trademarks} No Party may require, as a condition of registration, that a sign be visually perceptible, nor may a Party deny registration of a trademark solely on the ground that the sign of which it is composed is a sound Additionally, each Party shall make best efforts to register scent marks A Party may require a concise and accurate description, or graphical representation, or both, as applicable, of the trademark Article QQ.C.2: {Collective and Certification Marks} Each Party shall provide that trademarks shall include collective marks and certification marks A Party is not obligated to treat certification marks as a separate category in its domestic law, provided that such marks are protected Each Party shall also provide that signs that may serve as 12 geographical indications are capable of protection under its trademark system Article QQ.C.3: {Use of Identical or Similar Signs} Each Party shall provide that the owner of a registered trademark shall have the exclusive right to prevent third parties not having the owner‟s consent from using in the course of trade identical or 13,14 similar signs, including subsequent geographical indications, for goods or services that are 11 Negotiator‟s Note: NZ agrees ad ref to remove former paragraph from this Chapter on the basis that it is placed in Chapter AA 12 For purposes of this Chapter, geographical indication means indications that identify a good as originating in the territory of a party, or a region or locality in that territory, where a given quality, reputation, or other characteristic of the good is essentially attributable to its geographical origin Consistent with this definition, any sign or combination of signs shall be eligible for protection under one or more of the legal means for protecting GIs, or a combination of such means {Chair‟s note: address placement in legal scrub.} 13 For greater certainty, the exclusive right in this Article applies to cases of unauthorized use of geographical indications with goods for which the trademark is registered, where the use of that geographical indication in the course of trade would result in a likelihood of confusion as to source of the goods related to those goods or services in respect of which the owner‟s trademark is registered, where such use would result in a likelihood of confusion In the case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed Article QQ.C.4: {Exceptions} Each Party may provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, provided that such exceptions take account of the legitimate interest of the 15 owner of the trademark and of third parties Article QQ.C.5: {Well Known Trademarks} No Party may require as a condition for determining that a trademark is well-known that the trademark has been registered in the Party or in another jurisdiction, included on a list of wellknown trademarks, or given prior recognition as a well-known trademark Article 6bis of the Paris Convention for the Protection of Industrial Property (1967) shall apply, mutatis mutandis, to goods or services that are not identical or similar to those identified by a well16 known trademark, whether registered or not, provided that use of that trademark in relation to those goods or services would indicate a connection between those goods or services and the owner of the trademark, and provided that the interests of the owner of the trademark are likely to be damaged by such use Each Party recognizes the importance of the Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks (1999) as adopted by the Assembly of the Paris Union for the Protection of Industrial Property and the General Assembly of WIPO Each Party shall provide for appropriate measures to refuse the application or cancel the registration and prohibit the use of a trademark that is identical or similar to a well-known 17 trademark, for identical or similar goods or services, if the use of that trademark is likely to cause confusion with the prior well known trademark A Party may also provide such measures inter alia in cases in which the subsequent trademark is likely to deceive Article QQ.C.6: {Examination, Opposition and Cancellation / Procedural Aspects} Each Party shall provide a system for the examination and registration of trademarks which shall include, inter alia: (a) providing to the applicant a communication in writing, which may be electronic, of the reasons for any refusal to register a trademark; (b) roviding the opportunity for the applicant to respond to communications from the competent authorities, to contest an initial refusal, and to appeal judicially any final refusal to register a trademark; 14 For greater certainty, the Parties understand that Article QQ.C.3 should not be interpreted to affect their rights and obligations under articles 22 and 23 of the TRIPs Agreement 15 Drafter‟s note: For greater certainty, the Parties understand that Article QQ.C.4 applies to provisions relating to rights conferred by trademarks in this Chapter 16 Where a Party determines whether a mark is well-known in the Party, the Party need not require that the reputation of the trademark extend beyond the sector of the public that normally deals with the relevant goods or services 17 17 It is understood that such a well-known trademark is one that was already well-known before the registration or use of the first-mentioned trademark (c) providing an opportunity to oppose the registration of a trademark or to seek cancellation trademark; and 18 of a (d) equiring that administrative decisions in opposition and cancellation proceedings be reasoned and in writing Written decisions may be provided electronically Article QQ.C.7: {Electronic Trademarks System} Each Party shall provide: (a) a system for the electronic application for, and maintenance of, trademarks; and (b) publicly available electronic information system, including an online database, of trademark applications and of registered trademarks Article QQ.C.8: {Classification of Goods and Services} Each Party shall adopt or maintain a trademark classification system that is consistent with the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks (Nice Classification) of June 15, 1957, as revised and amended Each Party shall provide that: (a) registrations and the publications of applications indicate the goods and services by their 19 names, grouped according to the classes established by the Nice Classification ; and (b) goods or services may not be considered as being similar to each other on the ground that, in any registration or publication, they are classified in the same class of the Nice Classification Conversely, each Party shall provide that goods or services may not be considered as being dissimilar from each other on the ground that, in any registration or publication, they are classified in different classes of the Nice Classification Article QQ.C.9: {Term of Protection for Trademarks} Each Party shall provide that initial registration and each renewal of registration of a trademark shall be for a term of no less than 10 years Article QQ.C.10: {Non-recordal of a license} No Party may require recordal of trademark licenses: to establish the validity of the license; or as a condition for use of a trademark by a licensee, to be deemed to constitute use by the holder in proceedings relating to the acquisition, maintenance and enforcement of trademarks Article QQ.C.12: {Domain Name Cybersquatting} In connection with each Party‟s system for the management of its country-code top- level domain (ccTLD) domain names, the following shall be available: (a) an appropriate procedure for the settlement of disputes, based on, or modelled along the same lines as, the principles established in the Uniform Domain-Name Dispute-Resolution Policy, or that is: (i) designed to resolve disputes expeditiously and at low cost, (ii) fair and equitable, (iii) not overly burdensome, and (iv) does not preclude resort to court litigation; and 18 For greater certainty, cancellation for purposes of this Section may be implemented through nullity or revocation proceedings 19 Parties that rely on translations of the Nice Classification are required to follow updated versions of the Nice Classification to the extent that official translations have been issued and published to the litigation bear the costs of such experts, that Party should seek to ensure that such costs are reasonable and related appropriately, inter alia, to the quantity and nature of work to be performed and not unreasonably deter recourse to such proceedings 17 In civil judicial proceedings concerning the acts described in Article QQ.G.10 (TPMs) and Article QQ.G.12 (RMI), each Party shall provide that its judicial authorities shall, at least, have the authority 120 to : (a) impose provisional measures, including seizure or other taking into custody of devices and products suspected of being involved in the prohibited activity; (b) order the type of damages available for copyright infringement, as provided under its regime in 121 accordance with Article QQ.H.4 ; (c) order court costs, fees, or expenses as provided for under Article QQ.H.4.11; and (d) order the destruction of devices and products found to be involved in the prohibited activity A Party may provide that damages shall not be available against a nonprofit library, archives, educational institution, museum, or public noncommercial broadcasting entity that sustains the burden of proving that such entity was not aware or had no reason to believe that its acts constituted a prohibited activity Article QQ.H.5: {Provisional Measures} Each Party‟s authorities shall act on requests for relief in respect of any intellectual property right inaudita altera parte expeditiously in accordance with the Party‟s judicial rules Each Party shall provide that its judicial authorities have the authority to require the applicant, with respect to provisional measures in respect of any intellectual property right, to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the applicant‟s right is being infringed or that such infringement is imminent, and to order the applicant to provide a security or equivalent assurance set at a level sufficient to protect the defendant and to prevent abuse Such security or equivalent assurance shall not unreasonably deter recourse to such procedures In civil judicial proceedings concerning copyright or related rights infringement and trademark counterfeiting, each Party shall provide that its judicial authorities shall have the authority to order the seizure or other taking into custody of suspected infringing goods, materials and implements relevant to the infringement, and, at least for trademark counterfeiting, documentary evidence relevant to the infringement Article QQ.H.6: {Special Requirements related to Border Measures} 122 Each Party shall provide for applications to suspend the release of, or to detain, any suspect 123 counterfeit or confusingly similar trademark, or pirated copyright goods that are imported into the territory of the Party 120 For greater certainty, a Party may, but is not required to, put in place separate remedies in respect of Article QQ.G.10 (TPMs) and Article QQ.G.12 (RMI), if such remedies are available under its copyright law 121 Where a Party‟s copyright regime provides for both pre-established damages and additional damages, it may comply with the requirements of this subparagraph by providing for only one of these forms of damages 122 Drafter‟s note: The Parties understand that there shall be no obligation to apply the procedures set forth in this Article to goods put on the market in another country by or with the consent of the right holder 124 Each Party shall provide that any right holder initiating procedures for its competent authorities to suspend release of suspected counterfeit or confusingly similar trademark goods, or pirated 125 copyright goods into free circulation is required to provide adequate evidence to satisfy the competent authorities that under the law of the Party providing the procedures there is prima facie an infringement of the right holder's intellectual property right and to supply sufficient information that may reasonably be expected to be within the right holder‟s knowledge to make the suspected goods reasonably recognizable by its competent authorities The requirement to provide such information shall not unreasonably deter recourse to these procedures Each Party shall provide that its competent authorities have the authority to require a right holder initiating procedures to suspend the release of suspected counterfeit or confusingly similar trademark goods, or pirated copyright goods, to provide a reasonable security or equivalent assurance sufficient to protect the defendant and the competent authorities and to prevent abuse Each Party shall provide that such security or equivalent assurance shall not unreasonably deter recourse to these procedures A Party may provide that such security may be in the form of a bond conditioned to hold the defendant harmless from any loss or damage resulting from any suspension of the release of goods in the event the competent authorities determine that the article is not an infringing good Without prejudice to a Party‟s laws pertaining to privacy or the confidentiality of information, where its competent authorities have detained or suspended the release of goods that are suspected of being counterfeit trademark goods or pirated copyright goods, a Party may provide that its competent authorities have the authority to inform the right holder without undue delay of the names and addresses of the consignor, exporter, consignee, or importer, a description of the 126 goods, quantity of the goods, and, if known, the country of origin of the goods Where a Party does not provide such authority to its competent authorities when suspect goods are detained or suspended from release, it shall provide at least in cases of imported goods, its competent authorities with the authority to provide the foregoing information to the right holder normally within 127 30 days of the seizure or determination that the goods are counterfeit trademark or pirated copyright goods Each Party shall provide that its competent authorities may initiate border measures ex officio 129 with respect to goods under customs control that are: 128 123 Drafter‟s note: The Parties understand that a Party may treat “in transit” as distinct from “imported.” 124 For the purposes of this Article QQ.H.6 (Border Measures), unless otherwise specified, competent authorities may include the appropriate judicial, administrative, or law enforcement authorities under a Party's law 125 For purposes of Article QQ.H.6: (a) counterfeit trademark goods means any goods, including packaging, bearing without authorization a trademark that is identical to the trademark validly registered in respect of such goods, or that cannot be distinguished in its essential aspects from such a trademark, and that thereby infringes the rights of the owner of the trademark in question under the law of the Party providing the procedures under this section; and (b) pirated copyright goods means any goods that are copies made without the consent of the right holder or person duly authorized by the right holder in the country of production and that are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the Party providing the procedures under this section 126 For greater certainty, a Party may establish reasonable procedures to receive or access such information 127 128 For purposes of this Article, “days” shall mean “business days” For greater certainty, the parties understand that ex officio action does not require a formal complaint from a private party or right holder (a) imported; (b) destined for export (c) in-transit 130 ; or 131 132 , , and that are suspected of being counterfeit trademark goods, or pirated copyright goods Each Party shall adopt or maintain a procedure by which its competent authorities may determine, within a reasonable period of time after the initiation of the procedures described under Article QQ.H.6.(1), QQ.H.6.6(a) and QQ.H.6.6(b)and if applicable QQ.H.6.6(c), whether the suspect 133 goods infringe an intellectual property right Where a Party provides administrative procedures for the determination of an infringement, it may also provide its authorities with the authority to impose administrative penalties or sanctions, which may include fines or the seizure of the infringing goods, following a determination that the goods are infringing Each Party shall provide that its competent authorities have the authority to order the destruction of goods following a determination that the goods are infringing In cases where such goods are not destroyed, each Party shall ensure that, except in exceptional circumstances, such goods are disposed of outside the channels of commerce in such a manner as to avoid any harm to the right holder In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient, other than in exceptional cases, to permit the release of the goods into the channels of commerce 10 Where a Party establishes or assesses, in connection with the procedures described in this Article, an application fee, storage fee, or destruction fee, such fee shall not be set at an amount that unreasonably deters recourse to these procedures 11 Each Party shall include in the application of this Article goods of a commercial nature sent in small consignments A Party may exclude from the application of this Article small quantities of 134 goods of a non-commercial nature contained in travelers‟ personal luggage Article QQ.H.7: {Criminal Procedures and Penalties} Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale In respect of willful copyright or related rights piracy, “on a commercial scale” includes at least: (a) acts carried out for commercial advantage or financial gain; and 129 For purposes of this Article, a Party may treat “goods under customs control” as meaning goods that are subject to a Party‟s customs procedures 130 For purposes of this Article, a party may treat goods “destined for export” as meaning exported 131 Subparagraph (c) applies to suspect goods which are in-transit from one customs office to another customs office in the Party's territory from which the goods will be exported 132 As an alternative to QQ.H.6.6(c), a Party shall instead endeavour to provide, where appropriate and with a view to eliminating international trade in counterfeit trade mark or pirated copyright goods, available information to another Party in respect of goods that it has examined without a local consignee which are transhipped through its territory and destined for the territory of the other Party, to inform that other Party‟s efforts to identify suspect goods upon arrival in its territory 133 A Party may comply with the obligation in this Article with respect to a determination that suspect goods under QQ.H.6.6 infringe an intellectual property right through a determination that the suspect goods bear a false trade description 134 For greater certainty, a Party may also exclude from the application of this Article small quantities of goods of a non-commercial nature sent in small consignments (b) significant acts, not carried out for commercial advantage or financial gain, that have a substantial prejudicial impact on the interests of the copyright or related rights owner in relation to 135 136 the marketplace , Each Party shall treat willful importation or exportation of counterfeit trademark goods or pirated 137 copyright goods on a commercial scale as unlawful activities subject to criminal penalties Each Party shall provide for criminal procedures and penalties to be applied in cases of willful 138 importation and domestic use, in the course of trade and on a commercial scale, of labels or 139 packaging : (a) to which a mark has been applied without authorization which is identical to, or cannot be distinguished from, a trademark registered in its territory; and (b) which are intended to be used in the course of trade on goods or in relation to services which are identical to goods or services for which such trademark is registered 140 Recognizing the need to address the unauthorized copying of a cinematographic work from a performance in a movie theatre that causes significant harm to a right holder in the market for that work, and recognizing the need to deter such harm, each Party shall adopt or maintain measures, which shall at a minimum include but need not be limited to, appropriate criminal procedures and penalties With respect to the offenses for which this Article requires the Parties to provide for criminal procedures and penalties, Parties shall ensure that criminal liability for aiding and abetting is available under its law With respect to the offences described in Article QQ.H.7 (1)-(5) above, each Party shall provide: (a) penalties that include sentences of imprisonment as well as monetary fines sufficiently high to provide a deterrent to future acts of infringement, consistently with the level of penalties applied for 141 crimes of a corresponding gravity ; 135 It is understood that a Party may comply with subparagraph (b) by addressing such significant acts under its criminal procedures and penalties for non-authorized uses of protected works, performances and phonograms in its domestic law 136 A Party may provide that the volume and value of any infringing items may be taken into account in determining whether the act has a substantial prejudicial impact on the interests of the copyright or related rights owner in relation to the marketplace 137 For greater certainty, it is understood that a Party may comply with its obligation under Article QQ.H.7.2 relating to importation and exportation of counterfeit trademark goods or pirated copyright goods by providing that distribution or sale of such goods on a commercial scale is an unlawful activity subject to criminal penalties Furthermore, each Party confirms that criminal procedures and penalties as specified in Articles QQ.H.7.1, QQ.H.7.2 and QQ.H.7.3 are applicable in any free trade zones in a Party 138 A Party may comply with its obligation relating to importation of labels or packaging through its measures concerning distribution 139 A Party may comply with its obligations under this paragraph by providing for criminal procedures and penalties to be applied to attempts to commit a trademark offence 140 For purposes of this Article, a Party may treat the term “copying” as synonymous with reproduction 141 It is understood that there is no obligation for a Party to provide for the possibility of imprisonment and monetary fines to be imposed in parallel (b) that its judicial authorities shall have the authority, when determining penalties, to account for the seriousness of the circumstances, which may include those that involve threats to, or effects on, 142 health or safety ; (c) that its judicial or other competent authorities shall have the authority to order the seizure of suspected counterfeit trademark goods or pirated copyright goods, any related materials and implements used in the commission of the alleged offense, documentary evidence relevant to the alleged offense and assets derived from, or obtained through the alleged infringing activity; Where a Party requires the identification of items subject to seizure as a prerequisite for issuing any such judicial order, that Party shall not require the items to be described in greater detail than necessary to identify them for the purpose of seizure; (d) that its judicial authorities shall have the authority to order the forfeiture, at least for serious offenses, of any assets derived from, or obtained through the infringing activity; (e) that its judicial authorities shall have the authority to order the forfeiture or destruction of (i) all counterfeit trademark goods or pirated copyright goods; and (ii) materials and implements that have been predominantly used in the creation of pirated copyright goods or counterfeit trademark goods; and (iii) any other labels or packaging to which a counterfeit trademark has been applied and that have been used in the commission of the offense In cases where counterfeit trademark goods and pirated copyright goods are not destroyed, the judicial or other competent authorities shall ensure that, except in exceptional circumstances, such goods shall be disposed of outside the channels of commerce in such a manner as to avoid causing any harm to the right holder Each Party shall further provide that forfeiture or destruction under this subparagraph and subparagraph (c) shall occur without compensation of any kind to the defendant; (f) that its judicial or other competent authorities shall have the authority to release or, in the alternative, provide access to, goods, material, implements, and other evidence held by the relevant 143 authority to a right holder for civil infringement proceedings; (g) that its competent authorities may act upon their own initiative to initiate a legal action without 144 the need for a formal complaint by a private party or right holder With respect to the offences described in Article QQ.H.7 (1)-(5) above, a Party may provide that its judicial authorities have the authority to order the seizure or forfeiture of assets, or alternatively, a fine, the value of which corresponds to that of the assets derived from, or obtained directly or indirectly through, the infringing activity Article QQ.H.8: {Trade Secrets} 142 145 146 , A Party may also account for such circumstances through a separate criminal offense 143 A Party may also provide such authority in connection with administrative infringement proceedings 144 With regard to copyright and related rights piracy provided for by QQ.H.7.1 (Commercial Scale), a Party may limit application of subparagraph (h) to the cases where there is an impact on the right holder‟s ability to exploit the work in the market 145 For greater certainty, this Article is without prejudice to a Party‟s measures protecting good faith lawful disclosures to provide evidence of a violation of that Party‟s law 146 Drafter‟s note: The Parties understand that this Article is without prejudice to a Party‟s measures in relation to whistleblowing In the course of ensuring effective protection against unfair competition as provided in Article 10bis of the Paris Convention, each Party shall ensure that natural and legal persons have the legal means to prevent trade secrets lawfully in their control from being disclosed to, acquired by, or used by others (including state commercial enterprises) without their consent in a manner contrary to 147 honest commercial practices As used in this Chapter, trade secrets encompass, at a minimum, undisclosed information as provided for in Article 39.2 of the TRIPS Agreement Subject to Paragraph 3, Each Party shall provide for criminal procedures and penalties for one or more of the following: (a) the unauthorized, willful access to a trade secret held in a computer system; (b) the unauthorized, willful misappropriation of a trade secret, including by means of a computer system; or (c) the fraudulent disclosure, or alternatively, the unauthorized and willful disclosure of a trade secret, including by means of a computer system With respect to the acts referred to in Paragraph 2, a Party may, where appropriate, limit the availability of such criminal procedures, or limit the level of penalties available, to one or more of the following cases: (a) the acts are for purposes of commercial advantage or financial gain; (b) the acts are related to a product or service in national or international commerce; (c) the acts are intended to injure the owner of such trade secret; (d) the acts are directed by or for the benefit of or in association with a foreign economic entity; or (e) the acts are detrimental to a Party's economic interests, international relations, or national 148 defense or national security Article QQ.H.9: {Protection of Encrypted Program-Carrying Satellite and Cable Signals} Each Party shall make it a criminal offense to: 149 (a) manufacture, assemble, modify , import, export, sell, lease, or otherwise distribute a tangible 150 or intangible device or system, knowing or having reason to know that the device or system meets at least one of the following conditions: (i) it is intended to be used to assist, (ii) it is primarily of assistance, or 147 For the purposes of this paragraph “a manner contrary to honest commercial practices” shall mean at least practices such as breach of contract, breach of confidence and inducement to breach, and includes the acquisition of undisclosed information by third parties who knew, or were grossly negligent in failing to know, that such practices were involved in the acquisition 148 A Party may deem the term "misappropriation" to be synonymous with "unlawful acquisition." 149 For greater certainty, a Party may treat "assemble" and "modify" as incorporated in “manufacture.” 150 For the purposes of this paragraph, a Party may provide that “having reason to know” may be demonstrated through reasonable evidence, taking into account the facts and circumstances surrounding the alleged illegal act, as part of the Party‟s “knowledge” requirements A Party may treat "having reason to know" as meaning "wilful negligence." (iii) its principal function is solely to assist, in decoding an encrypted program-carrying satellite signal without the authorization of the lawful 151 152 distributor of such signal ; and (b) with respect to an encrypted program-carrying satellite signal, willfully: (i) receive 153 such a signal; or (ii) further distribute 154 such signal knowing that it has been decoded without the authorization of the lawful distributor of the signal Each Party shall provide for civil remedies for any person that holds an interest in an encrypted program carrying satellite signal or its content and who is injured by any activity described in paragraph Each Party shall provide for criminal penalties or civil remedies 155 for willfully: (a) manufacturing or distributing equipment knowing that the equipment is intended to be used in the unauthorized reception of any encrypted program-carrying cable signal; and 156 (b) receiving, or assisting another to receive , an encrypted program-carrying cable signal without authorization of the lawful distributor of the signal Article QQ.H.11: {Government Use of Software} Each Party recognizes the importance of promoting the adoption of measures to enhance government awareness of respect for intellectual property rights and of the detrimental effects of intellectual property rights infringement Each Party shall adopt or maintain appropriate laws, regulations, policies, orders, governmentissued guidelines, or administrative or executive decrees providing that its central government agencies use only non-infringing computer software protected by copyright and related rights, and if applicable, only use such computer software in a manner authorized by the relevant license These 157 measures shall apply to the acquisition and management of such software for government use 151 With regard to the criminal offences and penalties in paragraphs and 3, a Party may require a showing of intent to avoid payment to the lawful distributor or a showing of intent to otherwise secure a pecuniary benefit to which the recipient is not entitled 152 The obligation regarding export may be met by making it a criminal offence to possess and distribute such a device or system For the purposes of QQ.H.9, a Party may provide that a “lawful distributor” means a person who has the lawful right in that Party‟s territory to distribute the encrypted program-carrying signal and authorize its decoding 153 For greater certainty and for purposes of Article QQ.H.9.1(b) and QQ.H.9.3(b), a Party may provide that wilful receipt of an encrypted program-carrying satellite or cable signal means receipt and use of the signal, or means receipt and decoding of the signal 154 For greater certainty, a Party may interpret “further distribute” as “retransmit to the public.” 155 If a Party provides for civil remedies, it may require a showing of injury 156 A Party may comply with its obligation in respect of “assisting another to receive” by providing criminal penalties for a person willfully publishing any information in order to enable or assist another person to receive a signal without authorization of the lawful distributor of the signal 157 For greater certainty, paragraph should not be interpreted as encouraging regional government agencies to use infringing computer software or, if applicable to use computer software in a manner which is not authorized by the relevant license Section I: {Internet Service Providers} The Parties recognize the importance of facilitating the continued development of legitimate online services operating as intermediaries and, in a manner consistent with Article 41 of the TRIPS Agreement, providing enforcement procedures that permit effective action by rights holders against 158 copyright infringement covered under this Chapter that occurs in the online environment Accordingly, each Party shall ensure that legal remedies are available for rights holders to address such infringement and shall establish or maintain appropriate safe harbors in respect of online 159 services that are Internet Service Providers This framework of legal remedies and safe harbors shall include: 160 (a) legal incentives for Internet Service Providers to cooperate with copyright owners to deter the unauthorized storage and transmission of copyrighted materials or, in the alternative, to take other action to deter the unauthorized storage and transmission of copyrighted materials; and (b) limitations in its law that have the effect of precluding monetary relief against Internet Service Providers for copyright infringements that they not control, initiate, or direct, and that take place 161 through systems or networks controlled or operated by them or on their behalf The limitations described in paragraph 1(b) shall include limitations in respect of the following functions: 162 (a) transmitting, routing, or providing connections for material without modification of its content , or the intermediate and transient storage of such material done automatically in the course of such a technical process; (b) caching carried out through an automated process; 163 (c) storage , at the direction of a user, of material residing on a system or network controlled or 164 operated by or for the service provider ; and (d) referring or linking users to an online location by using information location tools, including hyperlinks and directories 158 For the purposes of this Article, “copyright” includes related rights 159 For the purposes of this Section, “ Internet service provider” means: (a) A provider of online services for the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user‟s choosing, undertaking the function in paragraph 2(a); (b) A provider of online services undertaking the functions in paragraphs 2(c) or (d) For greater certainty, “Internet service provider” includes a provider of the services listed above who engages in caching carried out through an automated process 160 For greater certainty, the Parties understand that implementation of the obligations in subparagraph 1(a) on “legal incentives” may take different forms 161 It is understood that, to the extent that a Party determines, consistent with its international legal obligations, that a particular act does not constitute copyright infringement, there is no obligation to provide for a limitation in relation to that act 162 Such modification does not include modifications made as part of a technical process or for solely technical reasons such as division into packets 163 164 For greater certainty, Parties may interpret “storage” as “hosting” For greater certainty, such storage of material may include e-mails and their attachments stored in the Internet Service Provider‟s server and web pages residing on the Internet Service Provider‟s server To facilitate effective action to address infringement, each Party shall prescribe in its law conditions for Internet Service Providers to qualify for the limitations described in paragraph 1(b), or alternatively, shall provide for circumstances under which Internet Service Providers not qualify 165 166 for the limitations described in paragraph 1(b) , : (a) With respect to the functions referred to in paragraph 2(c) and 2(d) above, such conditions shall include a requirement for Internet service providers to expeditiously remove or disable access to material residing on their networks or systems upon obtaining actual knowledge of the infringement or becoming aware of facts or circumstances from which the infringement is apparent, such as 167 through receiving a notice of alleged infringement from the right holder or a person authorized to act on its behalf, (b) An Internet Service Provider that removes or disables access to material in good faith pursuant to and consistent with sub-paragraph (a) shall be exempt from any liability for having done so, provided that it takes reasonable steps in advance or promptly after to notify the person whose 168 material is removed or disabled Where a system for counter-notices is provided under a Party‟s law, and where material has been removed or access has been disabled in accordance with paragraph 3, that Party shall require that the Internet Service Provider restore the material subject to a counter-notice, unless the person giving the original notice seeks judicial relief within a reasonable period of time Each Party shall ensure that monetary remedies are available in its legal system against any person who makes a knowing material misrepresentation in a notice or counter- notice that causes 165 A Party may comply with the obligations in Paragraphs 3, by maintaining a framework wherein: (i) there is a stakeholder organization that includes representatives of both Internet Service Providers and rights holders, established with government involvement; (ii) such stakeholder organization develops and maintains effective, efficient, and timely procedures for entities certified by the stakeholder organization to verify without undue delay the validity of each notice of alleged copyright infringement by confirming that the notice is not the result of mistake or misidentification, before forwarding such verified notice to the relevant Internet Service Provider; and (iii) there are appropriate guidelines for Internet Service Providers to follow in order to: qualify for the limitation described in paragraph 1(b), including requiring that such Internet Service Provider promptly remove or disable access to the identified materials upon receipt of a verified notice; and be exempted from liability for having done so in good faith in accordance with such guidelines; and (iv) there are appropriate measures that provide for liability where an Internet Service Provider has actual knowledge of the infringement or awareness of facts or circumstances from which the infringement is apparent 166 It is understood that Parties that have yet to implement the obligations set forth in paragraphs and will so in a manner that is both effective and consistent with that Party's existing constitutional provisions To that end, a Party may establish an appropriate role for the government that does not impair the timeliness of the process set forth under paragraphs or or entail advance government review of each individual notice 167 For greater certainty, such a notice, as may be set out under a Party‟s law, must contain information that is reasonably sufficient to enable the online service provider to identify the work, performance or phonogram claimed to be infringed, the alleged infringing material, and the online location of the alleged infringement, and that has a sufficient indicia of reliability with respect to the authority of the person sending the notice 168 With respect to the function in subparagraph 2(b), a Party may limit the requirements of paragraph related to an Internet Service Provider removing or disabling access to infringing material to circumstances in which the service provider becomes aware or receives notification that the cached material has been removed or access to it has been disabled at the originating site injury to any interested party misrepresentation 169 as a result of an Internet Service Provider relying on the Eligibility for the limitations in paragraph may not be conditioned on the Internet Service Provider monitoring its service or affirmatively seeking facts indicating infringing activity Each Party shall provide procedures, whether judicial or administrative, in accordance with that Party‟s legal system, and consistent with principles of due process and privacy, enabling a copyright owner who has made a legally sufficient claim of copyright infringement to obtain expeditiously from an Internet Service Provider information in the provider‟s possession identifying the alleged infringer, where such information is sought for the purpose of protecting or enforcing such copyright It is understood that the failure of an Internet Service Provider to qualify for the limitations in paragraph does not itself result in liability Moreover, this Article is without prejudice to the availability of other limitations and exceptions to copyright, or any other defenses under a Party‟s legal system The Parties recognize the importance, in implementing their obligations under this Article, of taking into account the impacts on rights holders and Internet Service Providers {This Section includes Annexes QQ.Annex.1-2 170 } {Subject to legal scrub, confirmation of cross-references} Section J: {Final Provisions} Except as otherwise provided in QQ.A.10bis and paragraphs 2-4, each Party shall give effect to the provisions of this Chapter on the date of entry into force of this Agreement for that Party During the relevant periods set out below, a Party shall not amend an existing measure or adopt a new measure that is less consistent with its obligations under the provisions referenced below for that Party than relevant measures that are in effect as of the date of signature of this Agreement This provision does not affect the rights and obligations of a Party under an international agreement to which it and another Party are party With respect to works of any Party that avails itself of a transition permitted to it with regard to implementation of Article QQ.G.6 as it relates to the term of copyright protection (transition Party), Japan shall apply at least the term of protection available under the transition Party's domestic law for the relevant works during the transition period and apply Article QQ.A.9.1 with respect to copyright term only when that Party fully implements Article QQ.G.6 With regard to obligations subject to a transition period, a Party shall fully implement its obligations under the provisions of this Chapter no later than the expiration of the relevant time period specified below, which begins on the date of entry into force of the Agreement for that Party (a) In the case of Malaysia: (i) With respect to Article QQ.A.8.2(a)(Madrid) and (d)(STLT), years; (ii) With respect to Article QQ.A.8.2(b)(Budapest), years; (iii) With respect to Article QQ.A.8.2(c)(UPOV91), years; 169 For greater certainty, it is understood “any interested party” may be limited to those with a legal interest recognized under that Party‟s law 170 Negotiators‟ Note to Legal Scrub: Please help us to create a link between the main text and standards (iv) With respect to sound marks in Article QQ.C.1 (types of signs registrable as trademarks), years; (v) With respect to QQ.H.6 (only with respect to „confusingly similar‟ and „export‟), years; (vi) With respect to QQ.H.6.6(b)-(c)(ex officio border enforcement), years; (vii) With respect to QQ.H.9.2 (civil procedures for satellite signals), years; (viii) With respect to QQ.E.17 (patent linkage), 4.5 years; (ix) With respect to QQ.E.20 (biologics), years; (x) With respect to QQ.E.14.2 (patent term adjustment for marketing approval delays), 4.5 years; (xi) With respect to Article G.6(b) (copyright term for author-based works), years (b) In the case of Mexico: (i) With respect to Article QQ.A.8.2(c)(UPOV91), years; (ii) With respect to Article QQ.E.13 (Agricultural Chemical Products), years; (iii) With respect to Section I (Internet Service Providers), years; (iv) With respect to QQ.E.14.2 (patent term adjustment for unreasonable curtailment), 4.5 years; (v) With respect to QQ.E.20 (Biologics), years; (vi) With respect to QQ.E.16 (pharmaceutical data protection), years (c) In the case of New Zealand: (i) With respect to Article QQ.G.6, upon entry into force of the Agreement, New Zealand shall provide that the term of protection for a work expires 60 years from the relevant date in Article QQ.G.6(a) and (b)(i) that is the basis for calculating the term of protection No later than years after entry into force of this Agreement for New Zealand, New Zealand shall provide the term of protection for works as set forth in Article QQ.G.6(a) and (b)(i) Further to Article QQ.A.10bis, New Zealand shall not be required to restore or extend the term of protection to works that have fallen into the public domain in its territory in accordance with this transition period (d) In the case of Peru: (i) With respect to QQ.E.16.2, five years; (ii) With respect to QQ.E.20, 10 years (e) In the case of Viet Nam: (i) With respect to Article QQ.A.8.2(b) (Budapest), years; (ii) With respect to Article QQ.A.8.2(e) – (f) (WCT and WPPT), years; (iii) With respect to sound marks in Article QQ.C.1 (Types of Signs Registrable as Trademarks), years; (iv) With respect to Article QQ.E.12.3-4 (PTE for patent office delays), years; (v) With respect to Article QQ.E.13 (ag chem), years; (vi) With respect to Article QQ.E.17 (patent linkage), years; (vii) With respect to Article QQ.E.14.2 (patent term adjustment for marketing approval delays), years; (viii) With respect to QQ.G.6(a) (copyright term for life-based works), years; (ix) With respect to QQ.H.6.6(b) (ex officio border measures for export), years; (x) With respect to QQ.H.6.6(b) (ex officio border measures for in- transit), years; (xi) With respect to QQ.I (ISP liability), years; (xii) With respect to QQ.H.7.6(h) (enforcement without IPR holder request for rights other than copyright), years; (xiii) With respect to QQ.H.7.2 (copyright importation), years; (xiv) With respect to QQ.H.9.1 (criminal remedies for satellite signals), years; (xv) With respect to QQ.H.9.3 (cable signals), years; (xvi) With respect to QQ.H.8.2-3 (criminal remedies for trade secrets), years; (xvii) With respect to QQ.H.7.4 (camcording), years; (xviii) With respect to QQ.G.10 (TPMs criminal), years; (xix) With respect to QQ.G.13 (RMIs criminal), years; (xx) With respect to QQ.H.7.2 (exportation on a commercial scale), years; (xxi) With respect to QQ.H.7.1(b) (definition of commercial scale not carried out for financial gain), years; (xxii) With respect to QQ.E.16 (data protection), 10 years*; (xxiii) With respect to QQ.E.20 (biologics), 10 years*; (xxiv) With respect to Article QQ.E.14.2 (patent term adjustment for office delays for pharmaceutical products), years^; (xxv) With respect to Article QQ.E.14.2 (patent term adjustment for office delays for agricultural chemical products), years^; *For those transition periods of 10 years, the Parties will consider up to justified requests from Viet Nam for an extension of the transition period for up to additional years upon each request ^For transitions for Article QQE.14.2 for pharmaceutical products and agricultural chemical products, the Parties will consider a request from Vietnam for an extension of the transition period for up to one additional year Parties will give sympathetic consideration to such requests ANNEX TO IP CHAPTER In order to facilitate the enforcement of copyright on the Internet and to avoid unwarranted market disruption in the online environment, paragraph(s) 3-4 shall not apply to a Party, provided that, if upon the date of agreement in principle of this Agreement, it continues to: prescribe in its law circumstances under which Internet Service Providers not qualify for the limitations described in paragraph 2; provide statutory secondary liability for copyright infringement where a person, by means of the Internet or another digital network, provides a service primarily for the purpose of enabling acts of copyright infringement, in relation to prescribed factors, such as: (a) whether the person marketed or promoted the service as one that could be used to enable acts of copyright infringement; (b) whether the person had knowledge that the service was used to enable a significant number of acts of copyright infringement; (c) whether the service has significant uses other than to enable acts of copyright infringement; (d) the person‟s ability, as part of providing the service, to limit acts of copyright infringement, and any action taken by the person to so; (e) any benefits the person received as a result of enabling the acts of copyright infringement; and (f) the economic viability of the service if it were not used to enable acts of copyright infringement; require Internet Service Providers carrying out the functions referred to in paragraph 2(a) and 2(c) to participate in a system for forwarding notices of alleged infringement, including where material is made available online, and where they fail to so, subjecting them to pre-established monetary damages for that failure; induce Internet Service Providers offering information location tools to remove within a specified period of time any reproductions of material that they make, and communicate to the public, as part of offering the location information tool upon receiving a notice of alleged infringement and after the original material has been removed from the electronic location set out in the notice; and induce Internet Service Providers carrying out the function referred to in paragraph 2(c) to remove or disable access to material upon becoming aware of a decision of a court to the effect that the person storing the material infringes copyright in the material For such Party, in light of, inter alia (ii), paragraph 1(a), “legal incentives” shall not mean the conditions for Internet Service Providers to qualify for the limitations provided in paragraph 1(b), as set out in paragraph ANNEX TO IP CHAPTER As an alternative to implementing Article QQ.xx (ISP), a Party may implement Article 17.11.23 of 171 the United States – Chile Free Trade Agreement (“US-Chile FTA”) ANNEX TO IP CHAPTER {UPOV NEW ZEALAND} Notwithstanding the obligations in Article QQ.A.8, and subject to paragraphs through of this Annex, New Zealand shall: (a) accede to the UPOV (1991) Convention within three years of the date of entry into force of this Agreement for New Zealand; or (b) adopt a sui generis plant variety rights system that gives effect to the UPOV (1991) Convention within three years of the date of entry into force of this Agreement for New Zealand 171 Negotiator‟s note: The language of Article 17.11.23 will be included in the Agreement by incorporation or thoroughly replicating the language in an annex to the Chapter Nothing in paragraph shall preclude the adoption by New Zealand of measures it deems necessary to protect indigenous plant species in fulfillment of its obligations under the Treaty of Waitangi, provided that such measures are not used as a means of arbitrary or unjustified discrimination against a person of another Party The consistency of any measures referred to in paragraph with the obligations in paragraph shall not be subject to the dispute settlement provisions of this Agreement The interpretation of the Treaty of Waitangi, including as to the nature of the rights and obligations arising under it, shall not be subject to the dispute settlement provisions of this Agreement Chapter BBB (Dispute Settlement) shall otherwise apply to this Annex A panel established under BBB.7 (Establishment of a Panel) may be requested to determine only whether any measure referred to in paragraph is inconsistent with a Party‟s rights under this Agreement ANNEX TO IP CHAPTER - BRUNEI Brunei may, for the purpose of granting protection as specified in Articles 18.E.16.(1), 18.E.16.(2) and 18.E.20.1, require an applicant to commence the process of obtaining marketing approval for pharmaceutical products covered under these Articles within 18 months from the date the product is first granted marketing approval in any country For greater certainty, the periods of protection referenced in Articles 18.E.16.(1), 18.E.16.(2) and 18.E.20.1 shall begin on the date of marketing approval of the pharmaceutical product in Brunei ANNEX TO IP CHAPTER -CHILE Nothing in Article QQ.E.16(1)-(2) or Article QQ.E.20 prevents Chile from maintaining or applying the provisions of Article 91 of Chile‟s Law No 19.039 on Industrial Property, as in effect on the date of agreement in principle of the TPP Agreement Notwithstanding Article AA.2, paragraph is without prejudice to any Party‟s rights and obligations under an international agreement in effect prior to the date of entry into force of the TPP Agreement for Chile, including any rights and obligations under trade agreements between Chile and another Party ANNEX TO IP CHAPTER - MALAYSIA Malaysia may, for the purpose of granting protection as specified in Articles 18.E.16.(1), 18.E.16.(2) and 18.E.20.1, require an applicant to commence the process of obtaining marketing approval for pharmaceutical products covered under these Articles within 18 months from the date the product is first granted marketing approval in any country For greater certainty, the periods of protection referenced in Articles 18.E.16.(1), 18.E.16.(2) and 18.E.20.1 shall begin on the date of marketing approval of the pharmaceutical product in Malaysia ANNEX TO IP CHAPTER – PERU To the extent that Andean Decision 486, Common Industrial Property Regime, and Andean Decision 689, Adequacy of Certain Articles of Decision 486, restricts Peru‟s implementation of its obligations set forth in TPP Article QQ.E.12.3 (Patent Term Adjustments for Patent Office Delays) and Article QQ.E.14.2 (Patent Term Adjustment for Unreasonable Curtailment), Peru commits to make its best efforts to obtain a waiver from the Andean Community that allows it to adjust its patent term in a way that is consistent with Article QQ.E.12.3 and QQ.E.14.2 Further, if Peru demonstrates that the Andean Community withheld its request for a waiver despite its best efforts, Peru will continue ensuring that it does not discriminate with respect to the availability or enjoyment of patent rights based on the field of technology, the place of invention, and whether products are imported or locally produced Thus, Peru confirms that the treatment of pharmaceutical patents will be no less favorable than treatment of other patents in respect of the processing and examination of patent applications ANNEX TO IP CHAPTER – PERU If Peru relies pursuant to TPP Article QQ.E.16.1(b) on a marketing approval granted by another Party and grants approval within months of the filing of a complete application for marketing approval filed in Peru, Peru may provide that the protection specified in Article QQ.E.16.1(b) and Article QQ.E.20, as applicable, shall begin with the date of the first marketing approval relied on Peru shall apply the term of protection established Article 16.10.2(b) of the United States – Peru Trade Promotion Agreement Peru may apply the prior paragraph to TPP Article QQ.E.16.2